VOL.

73, MAY 4, 1942 561

Pascual vs. Pascual et al.

[No. 48140.May 4, 1942]

SINFOROSO PASCUAL, plaintiff and appellant, vs. PONCIANO S.
PASCUAL ET AL., defendants and appellees.

1.EXECUTORS AND ADMINISTRATORS; RIGHT TO SUE AND BE SUED; EXCEPTION.

Under Rule 88, section 1, of the new Rules of Court, actions for the
recovery or protection of the property or rights of the deceased for
causes which survive may be prosecuted or defended by his executor
or administrator. Upon the commencement of the testate or intestate
proceedings, the heirs have no standing in court in actions of the
above character, except when the executor or administrator is
unwilling or fails or refuses to act, in which event the heirs may act in
his place. Here, the fictitious sale is alleged to have been made to the
defendants, one of them, M. S. P., being the executor appointed by the
probate court. Such executor naturally would not bring an action
against himself for recovery of the fishpond. His refusal to act may,
therefore, be implied. And this brings the case under the exception.
2.ACTIONS; ANNULMENT OF A CONTRACT OF SALE; VENUE.It appearing that
the sale made by the deceased to the defendants is alleged to be
fictitious, with absolutely no consideration, it should be regarded as a
nonexistent, not merely null, contract. And there being no contract
between the deceased and the defendants, there is in truth nothing to
annul by action. The action brought cannot thus be for annulment of
contract, but is one for recovery of a fishpond, a real action that
should be, as it has been, brought in Pampanga, where the property
is located.
3.TESTATE OR INTESTATE PROCEEDINGS; QUESTIONS AS TO TITLE TO PROPERTY;
CASE AT BAR.The general rule is that questions as to title to property
cannot be passed upon in testate or intestate proceedings. However,
when, as in the instant case, the parties interested are all heirs of the
deceased claiming title under him, the question as to whether the
transfer made by the latter to the former is or is not fictitious, may
properly be brought by motion in the testate or intestate proceedings
on or before the distribution of the estate among the heirs. This
procedure is optional to the parties concerned who may choose to
bring a separate action as a matter of convenience in the preparation
 or presentacin of evidence, and accordingly, the action brought by
the appellant is not improper.

APPEAL from an order of the Court of First Instance of

Pampanga. Magsalin, J.
The facts are stated in the opinion of the court.
Celedonio Bernardo for appellant.
Ortega & Ortega for appellees.

MORAN,J.:
On September 14, 1940, while the proceedings for the
probate of the will of the deceased Eduarda de los Santos
were pending in the Court of First Instance of Rizal,
plaintiff, Sinforoso Pascual, instituted in the Court of First
Instance of Pampanga against Ponciano S. Pascual and
others, an action for the annulment of a contract of sale of a
fishpond situated in Lubao, Pampanga, supposedly
executed without consideration by said deceased in her
lifetime in favor of the defendants. The complaint alleges
that plaintiff and defendants are all residents of Malabon,
Rizal, and are legitimate children of the testatrix, Eduarda
de los Santos. Defendants filed a motion to dismiss,
alleging want of cause of action, limitation of action, wrong
venue and pendency of another action. The trial court
granted the motion on the ground that the action should
have been brought by the executor or administrator of the
estate left by the deceased, and directed the plaintiff to
amend his complaint within five days. Plaintiff filed an
amended complaint, the amendment consisting in that "el
demandado Miguel S. Pascual ha sido nombrado por el
Juzgado de Primera Instancia de Rizal albacea
testamentario de los bienes de la finada Eduarda de los
Santos, en el asunto de la testamentaria de dicha finada."
The trial court, declaring that such amendment did not
cure the insufficiency of the complaint, dismissed the
action. It is from this order of dismissal that plaintiff
interposed his appeal.
Under Rule 86, section 1, of the new Rules of Court,
actions for the recovery or protection of the property or
rights of the deceased for causes which survive may be
prosecuted or defended by his executor or administrator.
Upon the commencement of the testate or intestate
proceedings, the heirs have no standing in court in actions
of the above character, except when the executor or
administrator is unwilling or fails or refuses to act, in
which event the heirs may act in his place. (Pomeroy on
Code

562

562 PHILIPPINE REPORTS ANNOTATED

Pascual vs. Pascual et al.

Remedies, p. 158; 11 R. C. L, p. 262; 21 Am. Jur., 940.)

Here, the fictitious sale is alleged to have been made to the
defendants, one of them, Miguel S. Pascual, being the
executor appointed by the probate court. Such executor
naturally would not bring an action against himself for
recovery of the fishpond. His refusal to act may, therefore
be implied. And this brings the case under the exception. It
should be noted that in the complaint the prayer is that the
fishpond be delivered not to the plaintiff but the executor,
thus indicating that the action is brought in behalf of the
estate of the deceased.
Appellees contend that there is here a wrong venue.
They argue that an action for the annulment of a contract
of sale is a personal action which must be commenced at
the place of residence of either the plaintiff or the
defendant, at the election of the plaintiff (Rule 5, sec 1,
Rules of Court), and. in the instant case, both plaintiff and
defendants an residents of Malabon, Rizal, but the action
was commenced in the Court of First Instance of
Pampanga. It appearing however, that the ask is alleged to
be fictitous with absolutely no consideration, it should be
regarded as a non-existent, not merely null, contract (8
Menresa, Comentarios at Cdigo Civil Espaol, 2nd ed., pp.
766-770.) And there being no contract between the
deceased and the defendants, there is in truth nothing to
annul by action. The action brought cannot thus be for
annulment of contract, but is one for recovery of a fishpond,
a real action that should be, as it has been, brought in
Pampanga where the property is located (Rule 5, sec. 3,
Rules of Court.).
Appellees argue further that the action brought by the
plaintiff is unnecessary, the question involved therein being
one that my properly be raised and decided in the
proceedings. The general rule is that questions as to title to
property cannot be passed upon in testate or intestate
proceedings, (Bauermann vs. Casas, 10 Phil., 386; Devesa
vs. Arbes, 13 Phil., 273; Guzman vs. Anog, 87 Phil, 61;
Lunsod vs. Ortega, 46 Phil., 664; Adapon vs. Maralit 40,
 Off. Gaz., 36 6th Sup., p. 84.) The court is however, of the
opinion and so holds that, when as in the instant came, the
parties interested on all heirs of the deceased claiming tide
under him. the question as to whether the transfer made
by the latter to the former is or is not fictitious, may
properly be brought by motion in the testate or intestate
proceedings on or before the distribution of the estate
among the heirs. This procedure is optional to the parties
concerned who my choose to bring a separate action an a
matter of convenience in the preparation or presentation of
evidence, and accordingly, the action brought by the
appellant is not improper.
Order is reversed, and the case in remanded to the trial
court for further proceedings, with costs against the
appelless.

Yulo, C. J., Ozaeta, Paras, and Bocobo, JJ., concur.

Order reversed and case remanded for further

proceedings.

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